A New Form of Cheeseburger: Modern Technology & the Development of the Next Generation of Secondary Materials

[With due thanks to Jason Wilson's brilliant post, "Secondary Materials are Like Cheeseburgers," I propose below, a concept of how law librarians, law review editors, scholars and bloggers can cooperate and build a better (well, new!) cheeseburger. These are random thoughts. I welcome feedback. RL]

The recipe:
Take Web 2.0 + Digital Commons + Durham Statement; Combine them, process until well-done and place between slices of WWW, Web 2.0 and app-technology.

The Next Generation of Secondary Materials
It is generally understood that secondary materials serve two very important purposes (beyond earning money for publishers and money and prestige for authors): First, a secondary resource, such as a treatise, practice material, looseleaf or scholarly article, provides users with clear statements of the meaning and application of the legal principles or concepts that are reflected in court opinions, statutory and administrative materials. They are essentially syntheses of rules and ideas expressed in these disparate resources, which are created and published by necessarily disparate entities for necessarily disparate audiences with necessarily disparate interests.
Second, they provide important indexing of these disparate resources through citation and analysis of the various materials. For example, if you are interested in finding the most significant cases that explain the difference between civil and criminal contempt, one need only read the relevant chapter of Wright and Miller’s Federal Practice and Procedure, because it is there that recognized experts in the field not only express their opinions as to those differences, but they also provide citations to the authorities that support their conclusions and analysis. Indeed, there may well be more cases available on the topic, but we trust that the ones cited by the authors of this treatise are the most important and most significant.

As publishers grapple with a variety pressures from shareholders and corporate boards as well as with changes in the technology and practical aspects of publishing, they have tended to respond with practices and policies that have actually served to run contrary to their underlying function which is to offer research tools to lawyers, students, practitioners and lay people who come to them for answers to pressing legal questions. Instead of, as once was the case, of serving the legal community by offering helpful tools and distributing them as widely as possible, they are narrowing their distribution to customers who can and must pay.

It is my opinion that several recent advances in “technology” generally can provide us with a new mode of secondary materials that may be as useful as traditional secondary materials, but that may be available for free for all.

The New Mode of Secondary Legal Materials
OK, here's the idea. What we're seeking is modern indexing to help the researcher focus on the most important cases - and, if possible clear commentary about what the cases mean.
Law review articles and blogs can give us a glimpse of which cases are important by examining which cases are written about and mentioned in articles and blogs. It is possible that wire services, too, can help identify which cases are important by analyzing the frequency with which cases are reported and commented upon. (There are significant problems with using data on cases reported in commercial media sources, but the problems can be accommodated for in various ways.)
The proliferation of digital law reviews in digital commons and services like SSRN, as well as articles and commentary on blogs can provide the substance for building a free database that consists of analysis of primary materials and commentary on policies and procedures.

Given the disparate forms of materials that are readily available on the web already, it is my opinion that new technology can be developed that can efficiently mine them to give researchers valuable information as they conduct research on any topic. Essentially, this new form of research tool would aggregate material from many sources, index them and offer searching and sorting in forms and of the most benefit to researchers.

In order for such as project to be successful, several foundational things should happen:

1. Law reviews should adopt the practice of asking authors to not only supply abstracts of articles, but should tag them with an approved list of subjects headings. They should also agree to tag digital articles with metadata that accurately reflects author and copyright information.

2. An approved list of metadata tags could also be circulated among bloggers and periodicals that produce digital editions.

3. Articles should be mined for citation data, including references to cases, courts, judges, scholars, etc.

4. Search results should be able to be ranked based on a variety of factors, including reputation and productivity of the authors and citation frequency.

5. Full text of cases should be indexed by computer and archived in a secure location. Search results should be available either as full text or as citation lists.

Fantasy or Possibility?
Is it possible to build a research tool that aggregates and searches information from such disparate sources? What’s more, what will such a service look like, and will it actually be valuable to researchers?
It is clear that collectively, blogs, law reviews, digital commons and various websites that report and comment upon legal matters cover a substantial portion of the most important cases of the day. A systematic method of crawling and indexing this content should provide researchers with a viable starting point for researching any current legal topic.
With Google Scholar and efforts on the part of law reviews and digital commons to build retrospective collections of secondary materials, the potential exists to build a rich, publicly accessible free resource.
Looking forward, legal scholars and other experts may endeavor to regularly comment upon breaking cases and other developments, thus providing a continuing source of present commentary about modern legal matters.
Modern developments in AJAX and HTML5, as well as new functionality of apps on iOS and Android platforms and their respective hardware platforms have the potential for the development of entirely new research tools. Unlike the present generation of online databases that are essentially flat text files built from print treatises, these new tools can give people access to a new concept of secondary materials in ways that would have been hard to imagine just a few years ago.
We’ve often heard of the difficulty of building a better mouse trap. Is it possible to build a better cheeseburger?

Perhaps.

Two Observations About the State of Modern Law Book Publishing

First, things cost too much and the prices keep increasing at rates that are out-stripping inflation and funding for libraries. It's almost as though publishers don't want law libraries to buy law books any more. Second, while the quality of online services, and, indeed, even print resources get better and better, there is still an indication that publishers aren't developing their materials for what people need, but, rather, what they can profit from.

Think that the reason that we're in these predicaments is at least partly because most of our publishers are so far removed from their customers that they simply don't understand who their customers are, or how or why they are using them.

For the most part, the executives of the big three publishers of materials about American law are not lawyers, nor publishers. Even if they have law degrees, they usually also have MBA's and come from business backgrounds. They are corporate types who see their companies as manufacturing widgets! They don't appreciate the grave responsibility that they have as publishers. (Seriously.)

Think about it. Without publishers, we'd have no idea what the law is. After all, the law is ideas, and it doesn't become static or fixed in any way, shape or form until it's captured in some form or other. The government and the courts have traditionally done a half-a**ed job of publishing legal materials, but that's about it. The only two government publications that are effectively published are the Federal Register and the CFR. Everything else they publish is poorly done: slow, bizarre formats and classification systems, etc. Without commercial publishers, we wouldn't have a workable USC, US Supreme Court Reports, federal court reporters, etc. What's more, even if we did have all that it wouldn't be worth much without looseleafs, treatises and law reviews to tell us what it all means. (See Jason Wilson's excellent post on why Secondary Sources are Like Cheeseburgers. The work of publishers isn't just like manufacturing hub caps or widgets, it's a vitally important role in our whole legal system. It's the lynchpin of our understanding the law.

But publishers and executives who come to the law publishing industry thinking that they are publishing widgets, will view their work differently than those who realize that they are not publishing widgets. This is the first problem: the new publishers are not serving us, they're serving themselves. They think they're making widgets.

Second, in the aftermath of the enormous mergers of the Ninties, the companies have merely grown more dense at the top. People who make decisions about what should be published and what shouldn't, or how they should serve their customers or how they shouldn't are now made by people who are so far removed from their customers, that they can't really hear what's being said. Sales people don't know who to communicate with inside companies in order to pass along good ideas. (Librarians are full of good ideas, by the way. No fooling.) I had an experience recently in which a single title published by a single publisher was available in both print and electronic formats. Managers of the print format didn't even know there was an electronic format available! The left hand didn't merely no know what the right hand was doing; the left hand didn't even know the right hand existed!

There are a couple publishers still around who are independent and produce good materials, and they succeed, in part I think because they are still small enough where actual customers can talk to the publishers and the product development people. But with the likes of the big three (or four, depending on how you count), you can't get any face time with a person who matters unless you can deliver.... profits.

Now, lest this sound too pessimistic and negative, please understand that I'm simply trying to be objective with this post. All this is understandable and remediable. Publishers must realize that their roles are critical components of our legal system and take a broader, bigger view of what they do. And, we customers must be more understanding about who were are dealing with; and we must continually strive to inform them. Especially the those newest to the field. If they don't get it, we must work to explain to them why we care so much, and why they should care about why we care.